Justice Secretary Michael Gove is challenging a High Court declaration that the legal ban on smoking in public places applies to state prisons and all Crown premises in England and Wales.
The ruling blocking Crown immunity was won by sex offender Paul Black, an inmate at HMP Wymott in Lancashire, who has been serving an indeterminate sentence since 2009.
Black says he suffered from a range of health problems due to frequent exposure to second-hand smoke in areas of Wymott, in particular on landings, laundry rooms and healthcare waiting rooms.
His complaint is that no-smoking rules in state prisons are being flouted and need to be made legally enforceable under Part 1 of the 2006 Health Act, which came into force in July 2007 and makes smoking a criminal offence in enclosed public places and workplaces.
In reality, smoking is generally not allowed in state-run prisons, except in cells designated for smokers. The Health Act already applies to private prisons as they are not Crown premises.
Black gave evidence that staff and prisoners were guilty of illicit lighting-up in areas where it was not allowed and not enough was being done to stop them.
His health problems exacerbated by smoke include hypertension and heart disease. A number of other prisoners served statements in support of his claim.
High Court judge Mr Justice Singh ruled in March 2015 that it was “Parliament’s intention” that the Health Act should apply in places for which the Crown was responsible.
Because of the potential impact of the ruling on prisons, the judge’s decision was not given immediate effect pending appeal.
James Eadie QC, representing the Justice Secretary, on Monday asked three appeal judges – Lord Dyson, Master of the Rolls, sitting with Lord Justice McCombe and Lord Justice David Richards – to strike down the High Court’s “unsustainable” decision.
Mr Eadie argued that no statute binds the Crown unless that statue expressly states that it does, or it is a “necessary implication” of the legislation. The Health Act did not expressly state, and there was no implication.
The QC stated: “A large proportion of prisoners smoke, and a particularly rigorous ban could cause discipline problems in some prisons, risking the safety of staff and prisoners.”
The Government’s current policy remained that a prisoner over 18 who smoked was permitted to do so in a single cell, or in a cell with a smoker, and a non-smoker must not be required to share with a smoker.
Whether to introduce entirely smoke-free landings and wings was for local prison governors to decide, following consultation with staff and prisoners. But all other indoor areas had to be smoke free.
Lawyers for Black say compliance with the anti-smoking legislation has been high around the country, due to inspections carried out by local authorities, who can be contacted anonymously and confidentially by members of the public via the Smoke-free Compliance line.
Black has requested that prisoners should be granted access to the line. Similar systems are already in place in jails for access to the Samaritans and Crimestoppers.
But he has been told that local authorities have no role in enforcing the Health Act, which does not apply to state prisons.
Philip Havers QC, appearing for Black, said it was estimated that second-hand smoking was causing at least 12,000 deaths each year in the United Kingdom, showing just how damaging and dangerous it was.
The Health Act was “plainly intended to prevent smoking in virtually all public and workplaces for a beneficial purpose – it was to apply to all”.
And that included state prisons, argued Mr Havers.
Reserving judgment, Lord Dyson said the court would give its decision at a later date.